Third Circuit: USA v. Dominique Johnson

No plain error in the fact that the jury didn't decide the question of whether the weapon was brandished, an element of the increased sentence, since no reasonable finder of fact could have decided otherwise.

On remand from the Supreme Court, deft can raise claims arising from cases decided during the pendency of the direct appeal.

State crime of unarmed bank robbery is categorically a predicate crime of violence.

Although jury was erroneously instructed that accomplice liability attached for brandishing a firearm if the deft was aware of it at the time that it happened, error is insufficiently plain to justify reversal.

Where a deft is not advised that the later counseled brief supersedes the earlier pro se filing, the court can equitably consider arguments raised in the earlier filing.

Although a predicate was double-counted in the indictment, insufficiently plain error, as other predicate counts resulted in convictions.

Other challenges -- 10th Amendment, Commerce clause - sufficient evidence.

http://www2.ca3.uscourts.gov/opinarch/111615p.pdf

Fifth Circuit: USA v. Ezell Brown, Jr.

Common-law rule holding that the place where the lender received he false statement establishes venue is inconsistent with the rule that the location of the crime is to be determined by the nature of the crime and the location of the acts.

Where the indictment alleges fraud in the supporting documents and the theory of the case becomes fraud in the application itself, there is no constructive amendment, since the offense as alleged included fraudulent verification of supporting documents at closing.

There is no requirement to establish that the fraudulent statement affected the lending decision; rather, it need only have a natural tendency to influence such a decision.

Reference in closing to truth-seeking role of the finder of fact did not dilute the required standard of proof.

http://www.ca5.uscourts.gov/opinions/pub/17/17-40740-CR0.pdf

First Circuit: US v. Acevedo-Hernandez

Sufficient evidence for conspiracy.

In case of alleged judicial bribery, referring to the injustice of the underlying proceeding in opening and closing statements of the bribery trial would not be sufficiently plain error to justify reversal.

Even if evidence was more prejudical than probative, harmless error, given the weight of the evidence.

As co-conspirator would have been subject to a wide variety of challenges on cross-examination, court's granting of 5th amendment privilege as to questions that did not directly jeopardize the co-deft was not a violation of the Sixth Amendment right to compulsory process.

Any sentencing errors harmless.  No cumulative error.

http://media.ca1.uscourts.gov/pdf.opinions/15-1763P-01A.pdf

Ninth Circuit: US v. Hernandez

Distribution of the image to the 17 year old minor depicted in it suffices to establish distribution for the purpose of the sentencing enhancement.

Sentencing statement by the judge that emphasized the defendant's decision to go to trial before imposing a 284 month sentence improperly infringed on deft's Sixth Amendment right to trial.

Dissent: This would be a procedural error, which deft doesn't raise, and court conflates.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/10/13-10428.pdf

Federal Circuit: Texas Optoelectronic v. Renesas Electronics

Although two of the three theories of trade secret misappropriation advanced at trial were legally erroneous, the evidence of the one remaining theory preponderated, and so the verdict can stand, but remanded to determine amount of equitable disgorgement under that theory.  As disgorgement was not available as a remedy for IP infringement in 1791, there is no right to demand a jury trial on the question.

Many other small things, and time is short.

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-2121.Opinion.7-9-2018.pdf

Second Circuit: USA v. Hernandez

Recklessly or negligently placing oneself in a situation where duress is probable negatives the defense.

Absent a request for special verdict, acquittal for conduct later found by a preponderance and used in sentencing does not imply a theory of the crime that amounts to a vindication of the conduct.

http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/7/doc/16-2765_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/7/hilite/

First Circuit: US v. Pagan-Romero

Provision and use of a dictionary in deliberations over contemporaneous objection and by a second judge was not an abuse of discretion, as the court polled the jurors afterwards as to whether it was used dispositively, and the relevant intent-level definition was not facially unhelpful to the deft.

http://media.ca1.uscourts.gov/pdf.opinions/16-1396P-01A.pdf

Ninth Circuit: Tamplin v. Muniz

Petitioner's desire to represent himself was sufficiently unequivocal in rejecting all public defenders and stating that he couldn't afford private counsel.  State Habeas denial grounded on the timeliness of the request for self representation was contrary to, or an unreasonable application of federal constitutional law, as there was a clear right to self-representation, since the request was made some weeks before trial.  Appellate counsel provided ineffective assistance, as second pro-se request hadn't been included in the appellate record.

Dissent: "Weeks before trial" is too vague to say that no reasonable jurist could have denied the habeas.  Brief appearance of private counsel presented timing problems and put into question the unequivocal nature of the request.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/06/16-15832.pdf

DC Circuit: USA v. Carlos Aguiar

Insufficient prejudice from closing of voir dire to justify federal habeas.

Government's intent to increase the charges to a potential life sentence were clear and easily determined; a claim of ineffective assistance based on not advising the deft of this therefore justifies a hearing.

Partial dissent: no contemporaneous evidence that deft would have accepted the plea.

https://www.cadc.uscourts.gov/internet/opinions.nsf/8471B6FE7C0D7212852582BF0050A06F/$file/15-3027.pdf

Eighth Circuit: US v. Kwame Askia

Federal embezzlement statute is not a continuing offense; once the threshold has been reached, the offense is complete.  For purpose of the stature of limitations, however, so long as the limit is reached within the relevant timeframe, the fact that the offense began earlier doe not bar the indictment.

No plain error in introduction of evidence of theft outside the statute of limitation's timeframe; no sixth amendment claim arising from pro se / standby.

Hearsay claim arising out of pretrial detention hearing moot. No 6A claim.

Sufficient evidence.

http://media.ca8.uscourts.gov/opndir/18/06/171515P.pdf

Eighth Circuit: Santos Rosales-Martinez v. Nick Ludwick

State court's re-imposition of limits on the confrontation of a witness during retrial after simply adopting the findings of the previous proceeding is not contrary to, or an unreasonable application of federal law on the subject.

http://media.ca8.uscourts.gov/opndir/18/06/171910P.pdf

Fifth Circuit: John Uranga, III v. Lorie Davis, Director

Postjudgment motion following denial of Habeas was not a second or successive Habeas filing, as it was a timely challenge of denial of leave to amend.

Fellow prisoner's delivery and signature sufficed for the prison mailbox rule under the next friend doctrine, as the justifying circumstances were disclosed.

Juror was not biased as a matter of law under the implied bias doctrine when it emerged at trial that the deft had driven over and damaged his lawn while fleeing from authorities.

http://www.ca5.uscourts.gov/opinions/pub/15/15-10290-CV1.pdf

First Circuit: US v. Lee

Out of court statements not subject to the Confrontation Clause and hearsay scrutiny had sufficient indicia of reliability to establish the drug quantities used at sentencing.

http://media.ca1.uscourts.gov/pdf.opinions/17-1490P-01A.pdf

Seventh Circuit: Wendell Weaver v. Walter Nicholson

State Habeas court reasonably applied governing precedent in holding that disqualification of deft's chosen counsel due to representation of potential prosecution witness didn't violate the right; the third party representation here was much closer than in the precedent to the contrary.

Trial counsel not crossing on a particular point didn't prejudice the petitioner, as the witness' credibility was attacked elsewhere.

Petitioner didn't show that trial counsel didn't investigate a potential witness, merely that the witness wasn't called, which must be presumed to be a strategic decision.

Claim based in reported statements of witness who died shortly afterwards was procedurally defaulted for not being raised on direct review, and would have been considered inadmissible hearsay under governing Supreme Court precedent.

Pre-trial inconsistencies and post-trial recantation insufficient to establish Due Process violation for prosecution witness' perjury, given state court finding to contrary.

Admission of prior bad acts claim procedurally defaulted.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:16-2400:J:Kanne:aut:T:fnOp:N:2171664:S:0

First Circuit: Caraballo-Caraballo v. Administracion de Correccion

When a superseding indictment adds charges arising out the same act, transaction or common scheme, the Sixth Amendment speedy trial clock for the added charges still runs from the initial indictment.

The protections of the Sixth Amendment are generically distinct from Due Process and double jeopardy, and differ from the statutory protections offered under the Speedy Trial Act; the protection therefore arises directly from the Sixth Amendment.

http://media.ca1.uscourts.gov/pdf.opinions/17-1961P-01A.pdf

Tenth Circuit: US v. Miller

Admission of expert testimony that did not clearly distinguish civil malpractice from criminal behavior was not an abuse of discretion.

Sufficient evidence where deft expert offers the only clear guidance on threshold of criminality, and court follows indications of another expert.

Indictment alleging dispensing of controlled substances by transaction as opposed to by substance not defective; additionally, would be harmless error as elements of the offense were identical.  No error in allowing conviction on theory of multiple dispensation where the crime is single dispensation. 

Absent curative instruction, plain error in constructive amendment of indictment when, during testimony at trial, prosecution witness alleged a second false statement.

Given the procedures used, state administrative vacatur did not make a prior suspension of medical license a legal nullity.

Sentence challenge moot, as already served.

https://www.ca10.uscourts.gov/opinions/16/16-1231.pdf

Eighth Circuit: United States v. Ler Wah Guide

District Court judge's recognition at sentencing of a language barrier did not undercut the court's finding that an earlier waiver of jury trial and guilty plea had been knowing and voluntary, despite the deft's claim that simultaneous translation had made the proceedings impossible to follow.  (Also given a written form.)

http://media.ca8.uscourts.gov/opndir/18/06/172431P.pdf

Eighth Circuit: United States v. Harold Stanley

No denial of effective counsel where deft waives on the understanding that non-lawyer next friend can serve as counsel, and the next friend's participation in the trial is limited during the proceedings.

No error in jury instructions disclaiming the evidentiary value of pro se statements.


http://media.ca8.uscourts.gov/opndir/18/06/164241P.pdf

First Circuit: US v. Melendez-Gonzales

AUMF for the War of Terror sufficed for statutory tolling of the statute of limitations; the indictment might otherwise have been untimely.

Court's instruction that a group of visitors not attend in full military dress did not, for constitutional purposes, close the courtroom.  Challenge to court's subsequent mention in jury instructions waived for not being raised below.

Prosc. witness description of "fraud" not unfairly prejudicial, possible hearsay harmless error.

Sentencing bumps, including uncharged conduct, established by preponderance; longer sentence for deft convicted of fewer counts not unreasonable.


http://media.ca1.uscourts.gov/pdf.opinions/17-1084P-01A.pdf

Eighth Circuit: United States v. Enrique Trevino

FRCrimP, Sixth Amendment, Sentencing


No abuse of discretion in denial of attempt to withdraw guilty plea, as the potential sentence was explained, deft stated in colloquy that representation was adequate, and deft's ability to challenge sentencing amounts was preserved.  Court's statement that ineffective assistance claims should be deferred to Habeas was inappropriately categorical, but not prejudicial.

Court's refusal to appoint substitute counsel was correct, as dissatisfaction stemmed from results, not from process.

Court did not threaten deft with reduction in acceptance of responsibility sentencing offset if he challenged the PSR--unchallenged aspects of PSR therefore stand.

United States  v.  Enrique Trevino